New Clause No. 4.—(RIGHTS OF OCCUPATION NOT TO BE BREACHES OF OBLIGATIONS.) (Hansard, 21 July 1967)

§ Mr. Graham Page
I beg to move, That the Clause be read a Second time.
This new Clause deals with rights of occupation and breaches of obligations. 2719 When moving previous new Clauses I described the rights of occupation I have in mind. I refer to the right of the wife to occupy adversely to the husband-owner of the property, or the circumstances may be the other way round; the wife might be the owner and the husband given the right of occupation.
The property may be freehold and subject to a restrictive covenant to be used as one dwelling house. The order of the court settling the rights of occupation as between the parties may divide the house into two homes. Indeed, it might divide it into more than two. If the in-laws were staying there it might be advisable to divide it into three homes. We cannot anticipate what the order of the court may be in settling the rights as between the parties when there has been this breach in the matrimonial home.
The property might not be freehold but leasehold. It might then be subject to a covenant by the lessee not to assign, sublet or part with possession of the property. If the wife has the right of occupation and the husband is the lessee, and the husband has gone out of occupation —perhaps in obedience to a court order defining the wife's right of occupation—the lessor in that case might say, "There has been a breach of covenant and you have parted with possession". In these circumstances the husband, if he went to the court for relief against a breach of covenant, would probably get relief granted to him. The lessor would not be allowed to forfeit the lease. But we do not want to create litigation; to force either side, in these circumstances, to go to court to get the relief of the court against the forfeiture of the lease.
These are just two examples of where a right of occupation granted under the Bill may cause a breach of obligation by the owner or lessee of the property; that is, the spouse who is given the right to occupy under Clause 1. It should be made clear that no person who is entitled to the benefit of a restrictive covenant—no lessor who is entitled to the benefit of covenants under a lease—may use this occasion of domestic difficulties to claim damages for breach of a restrictive covenant or forfeiture of a lease for a breach of covenant in the lease. I am sure that the sponsors of the Bill do not have the intention of opening the door 2720 to a difficult landlord in a case like this. But it would be far better to say so definitely in the Bill, so making the position clear and avoiding future litigation.

§ Mr. Archer
The sponsors of the Measure confess that they were considerably puzzled, when a similar new Clause was moved in Committee, to envisage the kind of situation the hon. Member for Crosby (Mr. Graham Page) had in mind; what kind of rights of occupation arising under the Bill might give rise to breaches of obligation.
It was unfortunate that when the matter arose in Committee the hon. Gentleman was unavoidably absent. His hon. and learned Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) moved that new Clause in his absence, but without having had the advantage of knowing precisely what the hon. Member for Crosby had in mind. Until today we were in the difficulty of wondering what sort of obligations the hon. Gentleman envisaged. I am grateful to him for pointing out two examples of the sort of obligations he has in mind and, so far as I know, those examples are exhaustive.
The hon. Gentleman's doubts are possibly unnecessary because it is inconceivable that a court would hold that an involuntary situation such as would arise under the Bill could constitute a breach of an obligation under a lease or mortgage not to part with possession or to use the dwelling as a single dwelling house.
In the very short time available, some research has been carried out, and it appears that there is authority for saying that breaches of obligations in leases would refer only to situations which have been voluntarily brought about by the tenant. Unhappily, I am not in a position to specify the authority. The hon. Gentleman can rest assured that the sponsors have no intention of opening the door to action of this kind by a landlord, but it appears that no court would countenance that kind of action or so interpret a breach of obligation as to cover a completely involuntary situation of this kind.

§ Mr. Graham Page
The courts will not take as gospel truth what we say here. They will look at the Act and construe its words.
2721 If I did not give enough examples, let me give one or two more. A mortgage from a building society requires the premises to be occupied by the mortgagor. I have mentioned in the Clause settlements, trusts, and so on. There may well be a settlement or trust for sale under which the beneficiary is entitled to occupy the house, but if the occupation ceases the property is to be sold. One frequently finds this in wills —I have drawn the clause many times—and the trustees might be obliged, if the sort of arrangement contemplated by the Bill took effect and the beneficiary went out of possession of the House, to exercise the trust. They might have no alternative. The fact that it did not come about voluntarily would not excuse them from carrying out the trust.
How do we know that this is voluntary? It will be very difficult to say that this is a forced right against the owner. It is a declaration in a Bill that the injured spouse will have a right to occupy. When a marriage becomes estranged the two parties will recognise this and act in the way that the law requires. It is not involuntary if one obeys the law. It is a voluntary act following from estrangement of the marriage.
Throughout our debates we have had the benefit of the presence of the Solicitor-General. He did not intervene on the tax matters earlier. I will excuse him for that, since he is not in that Department. But, being a Law Officer, I think that he might give us the benefit of his knowledge on these legal subjects.

§ The Solicitor-General (Sir Dingle Foot)
I intervene at the hon. Gentleman's invitation. I should have done so earlier if he had intimated a desire to hear any advice which I could give.
I agree entirely with what has been said by my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer). His argument was not fully understood by the hon. Member for Crosby (Mr. Graham Page). In effect, my hon. Friend was saying that for there to be a breach of an obligation contained in a conveyance, transfer, lease, tenancy, mortgage, settlement, trust or other similar acts or deeds or documents there must be the voluntary element. Somebody must bring about a breach. Here there is no voluntary breach of the 2722 conveyance, or whatever it may be. There is the separate operation of an Act of Parliament.
Having studied the matter, I cannot conceive of any circumstances in which a court would hold that the statutory creation by the Measure of a right of occupation could be construed as such a breach as that referred to in the new Clause. I therefore advise the House that the danger which the hon. Member for Crosby foresees is quite imaginary.

§ Mr. Bernard Braine (Essex, South-East)
I rise with great trepidation merely to say that I thought it a little unfair of the Solicitor-General to chide my hon. Friend the Member for Crosby (Mr. Graham Page) for not inviting him earlier to intervene. For those of us who are not lawyers, this is an extremely difficult Bill to follow.
My hon. Friend made a strong point when he said that it was not what we in the House said, however sincere and well founded it might be, which mattered in legislation of this kind. What matters is the letter of the Statute and how the courts interpret it. I trust that the Solicitor-General will not wait for invitations but that, when it is clear that there is a difference of opinion between two Members whose opinions we respect greatly, he will intervene and, out of his great wisdom and experience, enlighten the rest of us as to where the truth lies.